>Eugene Dillenburg wrote:
>As for patriotic displays, there was a case just a couple years ago in<
>which a professional basketball player (sorry, I forget his name)>decided,
>for whatever reason, that he did not wish to stand during the >national
>anthem before each game.  The league fined him, saying it was >a rule.
>Some fans complained that the player's First Amendment rights >were being
>violated.  Lawyers wrote newspaper articles explaining >that, as a private
>employer, the league had the right to require this >display of patriotism
>as a condition of employment.  (I believe the >player dropped his lawsuit
>when his lawyers convinced him he didn't >have a case.)  Again, IANAL, but
>it would seem that the inverse would >also be true: an employer could
>require a *ban* on displays of >patriotism as a condition of employment.

     Apologies for my pedantic streak, but I must respectfully point out
that the above example is incorrect. The player is Mahmoud Abdul-Rauf. In
1996 he was suspended for one game without pay for violating a league rule
that all players must stand for the national anthem in a "dignified
posture." Abdul-Rauf claimed that his interpretation of Muslim beliefs
precluded him from standing for anthem.  The league, the players
association, and Abdul-Rauf settled the issue the next day. There was never
a lawsuit.  At any rate, the core issue fell under Title VII of the 1964
Civil Rights Act, which prevents any "employer to discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment because of such individual's race, color, religion,
sex or national origin..."  The ACLU and a large number of legal scholars
believe Abdul-Rauf almost certainly could have established a prima facie
case against the league. He chose against it (possibly because he was losing
$30,000 for every game he missed). At any rate, this was specifically a
Title VII case (as opposed to the Free Exercise Clause of the 1st
Amendment).  In addition, Abdul-Rauf was a contract employee, and his
contract contained very specific wording in respect to the National Anthem.
This is very different from a (presumably)at-will employee at (again,
presumably) a private institution.

     Now, all that being said, a private employer does have fairly broad
latitude in terms of employment policies and practices - as long as the
policies/practices do not discriminate or are retaliatory in nature. Is the
museum director in question bird-brained and without a clue? No question,
IMHO.  Could she legally give the order to remove the flags? It irritates me
to say so, but it's likely (depending on a few variables).

     OK, since I'm on a roll...the 1st Amendment does apply to public bodies
("Congress shall pass no law...etc"), but that's only half the story.  The
other half is how The US Supreme Court has interpreted the 1st Amendment.
Their decisions reach far beyond public policy, and directly impact the
private sector. You may now resume your regularly scheduled browsing...

John Lamberson

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